Two recent court cases illuminate the role of a survey in dealing with property that is benefited by or burdened with, an easement.  In the first case, a Mercer Island lot enjoyed an easement for utilities, vehicular access and parking over a portion of a neighboring lot.  Over time the owner of the burdened lot applied for permission to open a culvert in the easement area that contained a stream and restore the stream to its natural state.  This involved the owner of the easement right having to abandon that part of the easement that allowed vehicular access and parking, retaining only the right to have utilities run through the easement.  This owner later sold the property and some ten years later the buyer of the property discovered the easement and tried to enforce the right to vehicular access and parking on the easement. 

The statute of limitations for a contract such as a warranty deed is six years, and the court held that the buyer’s claim under the deed was barred by the statute of limitations.  Where a survey comes in here is that no survey was done, but if one had been done it would have shown that the burdened property owner was actually in possession of the easement land at the time of the sale in such a way that the easement right to vehicular access and parking could not be used.  That meant that the running of the statute of limitations would not be delayed until the buyer discovered the easement.       The court also held that the buyer’s title insurance would not protect the buyer because the standard exclusion in title insurance for any defect that would have been shown by a survey covered this problem.  Here a survey would have saved the buyer much cost and disappointment.

The second case involved a view easement that was negotiated between two property owners who owned adjoining parcels with views of the Columbia River.  The upslope owner naturally wanted protection of his view from encroachment by growing trees on the downslope neighbor’s property.  This is a common issue with view property.

The neighbors negotiated a somewhat complex easement that categorized certain ornamental trees on the downslope lot by when they were planted, although the critical date was prior to the ownership of either of the two parties to the dispute, so that presented some proof problems as to the application of an exemption for existing trees at that early date in 1999.  Another critical issue was that the parties also negotiated a boundary line adjustment which moved the dividing line of the properties up the slope, thereby including several of the trees that concerned the upslope owner, in the downslope owner’s property.  In this case a survey was done in connection with the boundary line adjustment but the surveyor did not delineate the new boundary line with survey stakes and purportedly told the upslope owner that some of the trees that interfered with his view were on his property.

The upslope owner cut down one of the trees that was actually on the downslope owner’s property as a purported infringement of the view easement.   The downslope owner sued the upslope owner for timber trespass, which provides for triple damages if the cutting was “willful” and the court awarded the triple damages.  The court found that the upslope owner did not prove that the tree in question was not exempt from the view easement as a pre existing tree.   The court also did not believe the upslope owner’s claim that he thought the tree was on his property, based on the clear evidence of the survey.  The upslope owner did win a determination that the easement limited the height of construction on the downslope lot to a specific level, but overall the easement and survey resulted in an expensive day for the upslope owner.

The foregoing is intended as education and should not be considered legal advice.